Explaining the New Illiberal Liberalism

A new form of illiberal liberalism first appeared in Europe. In 2004 the President of the EU Commission proposed a distinguished Italian academic, Rocco Buttiglione, as Justice Minister. But his nomination foundered because he had said previously that homosexual activity was wrong. Buttiglione’s assurance that he opposed discrimination against homosexuals and would enforce that principle was unavailing.

Fast forward to 2018 in the United States, Senator Cory Booker complained that the nominee for Secretary of State, Mike Pompeo, did not approve of same-sex marriage and had said that homosexual acts were morally disordered. Pompeo’s argument that he would not discriminate against homosexuals and would enforce marriage rights as required by law did not appear to assuage Booker, even though Booker did not offer any evidence that Pompeo had engaged in such discrimination at any time in his life, including his long political career.

Thus, a new norm is developing among progressives that favors disqualification from office of those who believe or at least have said publicly that homosexual marriage is a mistake or homosexual acts are wrong. This is a perversion of liberalism in the broad sense of the term.

Liberalism makes a sharp distinction between legality and morality. Indeed, modern liberalism began by making clear that the state should not regulate religious belief, which of course contributes importantly to many people’s moral judgments. The liberal state allows individuals to pursue their own idea of the good so long as it does not harm others. Indeed, this liberal view was the best argument for the deregulation of sexual activity and the extension of marriage rights to homosexuals.

But the idea of the good may include moral judgments about one’s own and others’ actions. Officials in a liberal state owe a duty of obedience to its law, but they cannot be expected to surrender their moral opinions, particularly ones rooted in their religious faith. Now it’s true that if these opinions are extreme or eccentric, they might offer reasons for exclusion from public life, because they may raise questions about their general fitness and stability. But the moral judgments at issue can hardly said to be either, although they are not mine. They reflect the shared opinions of the great monotheistic religions over the centuries. They remain the view of the great majority of these religions. Same-sex marriage was opposed by leaders of our main political parties in the United States until a few years ago.

What is driving this form of liberal illiberalism? Here are four possibilities.

A New Religion. The new liberalism is now not a political philosophy of limiting the permissible ends of government but itself a intolerant religion. Many religions in the past held that error had no rights and when their advocates controlled the state acted on that position to stamp out heresy.

The Rage for Equality. Equality is now more important to the new liberalism than liberty, even liberty of conscience. It is intolerable under this view for people to express any opinion exalting one kind of moral vision of the good life over another at least when it concerns sexual relations. Of course, that equality may be applied selectively: some views about sex may well turn out to be more equal than others.

Elite Conventionality. Views of certain subjects are just rules for admission to the elite club. The masses may have some benighted views on morality, but the social cohesion requires a stricter set of conventions.

Fragility of the Modern Psyche. People should not be expected to tolerate opinions that they are acting immorally, because that makes them feel bad about themselves. Precisely because many people in the modern world lack a considered moral framework in which to ground their behavior, they cannot endure criticism.

In any event, all these positions are in substantial tension with the essence of classical liberalism which permits, indeed encourages, individuals to pursue and articulate an ideal of the good so long as it does not violate the law or cause direct harm to others.

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John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Such is the state of American law and of American society that the decision of a single Colorado baker not to make a cake for a customer because of his religious objection to what the cake was for will now go before the Supreme Court.

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